Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., while allowing a second appeal filed by the plaintiff against the order of the first Appellate court, held that the suit filed for protecting the possession of immovable property based on settled exclusive possession cannot be dismissed on the ground that the plaintiff has failed to prove title to the suit property.

The plaintiff claimed that the suit property was gifted orally to him by one Hamid. He claimed that the defendants were interfering in his peaceful possession of the suit property. Therefore, he filed a suit for perpetual injunction against the defendants, which was allowed by the trial court. It was an admitted fact the plaintiff was, all throughout, in exclusive possession of the suit property. However, on appeal, the First Appellate Court reversed the order passed by the trial court. Hence, the present the second appeal by the plaintiff.

The substantial question of law to be decided in this appeal, as reframed by the High Court was: Can a suit filed for protecting the possession of immovable property based on settled exclusive possession be dismissed on the ground that the Plaintiff has failed to prove title to the suit property?

After hearing Pramod N. Joshi, Advocate for the plaintiff, and Sharad T. Bhosale, Advocate for the respondent-defendants, the High Court perused the record and reached the conclusion that the substantial question as framed above had to be answered in the negative. Explaining the fundamental fallacy in the impugned order, the Court explained: “The District Court has dismissed the plaintiff’s suit for protecting his possession without in any way having questioned the plaintiff’s exclusive possession of the suit property. If his exclusive possession was not debated/questioned, assuming without admitting that his exclusive ownership through the purported oral gift by Hamid Husein was not proved unless the defendants actually showed either their pre-existing physical possession or their entitlement to the suit property by a succession, testamentary or intestate, the plaintiff was entitled to the perpetual injunction sought by him.”

It was further observed that the defendant’s’ claim to be in physical possession of the suit property was neither accepted by the trial court nor by the First Appellate Court, and the only case of entitlement pleaded by the defendants having also been found against them by both courts below, they had no case to resist the plaintiff’s claim for protecting his admitted possession of the suit property.

Accordingly, the second appeal filed by the plaintiff was allowed; the impugned judgment of the First Appellate Court was set aside, and the order passed by the trial court was restored. [Kadar Raju Shaikh v. Abbas Pirmohamad Shaikh, 2019 SCC OnLine Bom 4688, decided on 07-11-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for PMLA: The Tribunal chaired by Manmohan Singh, J. set aside an order restraining a woman from sale or transfer of a property, in which she was not claiming any right, title or interest.

The present appeal was filed under Section 26 of Prevention of Money Laundering Act, 2002 against the order passed by the Adjudicating Authority in an Original Application (OA) whereby appellant and her associates had been restrained from sale/ transfer of certain properties. The appellant’s case was that prima facie there was no link or nexus with the accused. Her name had only been mentioned in relation to a property which she had agreed to be purchased from one Nirmala Jain. However, due to certain personal reasons on the seller’s part, the sale could not be consummated. The said OA made no mention of any paper/documents/article or the like which had been seized and which had any connection with the appellant.

Appellant’s sole submission was that no cogent evidence had been provided by the ED to show that it had any link/ nexus with any alleged accused parties. However, despite the same, she had been arrayed as a defendant in the O.A.

The Tribunal noted that in the impugned order, no plea of the appellant had been referred. The appellant was not even claiming any right in the subject property. No prosecution complaint had been filed under Section 8(3)(a) of PMLA and the period of ninety days had already expired. Thus, her name ought to be deleted as the defendant from the O.A. At this juncture, counsel for respondent Atul Tripathi submitted that since the appellant was claiming no right and title in the property, her name may be deleted.

In view of the above, the appeal was allowed.[Alka Pahwa v. Assistant Director Directorate of Enforcement, Chandigarh, 2019 SCC OnLine ATPMLA 10, decided on 28-03-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Alexander Thomas, J. set aside an order passed by Tahsildar vide which petitioners’ request for transfer of registry and mutation was rejected, holding the same to be ultra vires and illegal.

Petitioners’ herein were the donee of gift deeds executed by their respective mothers – Meenakshi Amma and Narayani Amma. The respondent rejected their request for transfer of registry and mutation in their names on the ground that Narayani Amma and Meenakshi Amma had got right over the subject property on the basis of a registered gift deed executed by their mother. The said deed specifically stipulated that the subject property therein was to be possessed as ancestral property and its rights would devolve only on female descendants. Thus, the Tahsildar opined that transfer of registry sought for by the petitioners could not be done as Meenakshi Amma and Narayani Amma did not have the right to alienate property going by the descriptions and stipulations in gift deed.

The Court opined that Tahsildar had no power whatsoever to decide on the title of the parties concerned. When the concerned Sub-Registrar had duly registered gift deeds in favour of the petitioners under the Registration Act, 1908 then the respondent could not have refused mutation and transfer of registry on basis of his opinion. Determinations of vexed issues of the title are issues falling within the exclusive jurisdiction of a civil court.

In view of the above, the petition was allowed directing the respondent to take necessary steps for the transfer of registry and mutation in favour of the petitioners.[Marunnoli Vijayalakshmi v. Tahsildar, Koyilandi Taluk, 2018 SCC OnLine Ker 7425, Order dated 13-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of P.R. Ramachandra Menon and N. Anil Kumar, JJ. dismissed a petition seeing mandamus for police assistance in relation to a disputed property holding that a writ court could interfere in matters involving civil rights.

Dispute between the parties centered on the ownership and possession of a property in absolute possession of the petitioner. Respondent’s  3 to 6 who resided on the eastern side of the said property, broke a portion of the compound wall and made an attempt to carve out a pathway into petitioner’s property. Hence, the petitioner approached the Munsiff’s Court and was granted a decree of prohibitory injunction which was consequently executed. Allegedly, the respondents attempted to trespass into petitioner’s property again by breaking the iron fence on boundary separating their properties. Thus, the present petition was filed seeking police aid to reconstruct the said iron fence so as to prevent respondents from trespassing into his property.

The Court relied on the judgment of Division Bench of this Court in Adhikarath Valappil Kunhumuhammed v. Korath Illath Valappil Mammi, 1999 SCC OnLine Ker 159 where it was held that when there is dispute between parties and only an interim ex-parte order passed is in force, then in such a situation a Court should not exercise its jurisdiction under Article 226 of the Constitution of India with a direction for police aid.

In view of the above, it was held that disputed questions of title and possession of property could not be the subject matter for determination by a writ court under Article 226 of the Constitution of India under the guise of police protection, to the petitioner, particularly, when such questions were pending consideration before a competent civil court. [Raman v. State of Kerala, 2018 SCC OnLine Ker 7432, decided on 03-12-2018]

Case BriefsHigh Courts

Tripura High Court: The Division Bench of Sanjay Karol, CJ and Arindam Lodh, J. dismissed an appeal filed against the judgment rendered by trial court dismissing a civil suit.

The trial court dismissed the suit on grounds of res judicata. It was found that the issue of declaration of title over the suit land had already been decided in an earlier judgment. Furthermore, the judgment in the earlier suit was challenged in appeal before the High Court, but the appeal was dismissed and the earlier judgment attained finality.

The High Court observed that a subsequent suit, though by another person, but dealing with same subject matter, is hit by the principle of res judicata. The issue in the present suit was directly and substantially in issue in the earlier suit. It was stated that all litigations must come to an end. In such circumstances, the court found no reason to interfere with the trial court’s judgment. Thus, the appeal was dismissed. [Shayamal Bhattacharjee v. State of Tripura, 2019 SCC OnLine Tri 2, decided on 02-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed this writ petition, claiming relief by private parties, in respect to the possession and title of the immovable property.

The facts of the case were that the petitioner had a dispute over possession with the respondents, her stepsons, with regard to some property.  She approached the Tehsildar Khansahib for redressal and the matter reached to the Dy. Commissioner. The Dy. Commissioner ordered in her favor but the respondents did not oblige to this order. The petitioner thus approached this court to seek relief.

The Court reiterated the settled law and relied on the Supreme Court decision in Roshina T v. Abdul Azeez K.T.,2018 SCC OnLine SC 2654, where the Court cautioned against the entertainment of the writ petitions involving adjudication of disputed questions of facts relating to possession and title of immovable property between the private parties.

Thus, the writ petition was dismissed. [Khati v. State of J&K,2018 SCC OnLine J&K 979, decided on 14-12-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein the Court declined to issue a writ of mandamus directing the respondents to allot an alternative site to the petitioner, basing its decision on the maxim nemo dat quod non habet.

The petitioner submitted that he was allotted a site by the respondent under a certain scheme, where under the petitioner also deposited a certain amount of money. However, later it was found that the concerned land belonged to some other person and therefore, could not have been allotted to the petitioner. Consequently, the petitioner filed representation before the respondent to allot an alternative site. The instant petition sought the issue of a writ of mandamus directing the respondents to consider petitioner’s representation.

The High Court perused the record and was of a clear view that the said prayer could not be granted. The Court found that the land that was allotted to the petitioner was not available with the respondent in the very first place. As such, under no circumstances, the said allotment could have been made. The Court based its opinion on the maxim nemo dat quod non habet; meaning that nobody could pass a better title than he himself has. The fact that the land belonged to a third party did not entitle the present petitioner to seek an alternative site as a matter of right. The Court also held that the petitioner could sue the respondent for damages for the loss caused to her on account of cancellation of the said allotment, but the relief as prayed for by the petitioner could not be granted.

Accordingly, the petition was dismissed. [N. Premakumari v. Commissioner, Chikballapur District, WP No. 47991 of 2017 (LB-RES), order dated  01.02.2018]